conclusive test of a fixture; nor can we thus hope to reconcile those numerous cases which proceed upon different meanings stand, dwelling-houses especially, 14 Allen, 128; but an agreement giving the right to remove may be express or implied from circumstances. 21 Iowa, 177; O'Donnell v. Hitchcock, and other cases supra. Fencing in place is a fixture of the freehold, Emrich v. Ireland, 55 Miss. 390; Russ v. Barker, 4 Pick. 239; Glidden v. Bennett, 43 N. H. 306; Ripley v. Page, 12 Vt. 353; Goodrich v. Jones, 2 Hill, 142; but stone, brick, lumber, and other materials for building, lying about loose or in piles, remain personal property until more completely annexed to the land, Woodman v. Pease, 17 N. H. 282; Wing v. Gray, 36 Vt. 261; Cook v. Whiting, 16 Ill. 480; 15 Ill. 162; 3 Iowa, 220. Manure scattered about or heaped in the course of husbandry is usually treated as part of the soil by the modern cases. Cf. Aleyn, 32, with Fay v. Muzzey, 13 Gray, 53; Plumer v. Plumer, 30 N. H. 558; 11 Conn. 525; 2 Hill (N. Y.), 142; 1 Washb. Real Prop. 6. But while shavings, &c., used or intended for use to fill up marshy ground may be a part of the realty, shavings and slabs suitable for kindling, and intended to be used and removed as such, remain personal property. 48 Wis. 628. The general rule is, that things personal in their nature, which are fitted and prepared to be used with real estate, and are essential to its beneficial enjoyment, become part of the soil and pass with it under a deed of conveyance, provided they were once annexed to the land, and continue to be so used. But a different principle applies where the parties had agreed that such things should remain the property of the party annexing them. See 1 Greenl. Cruise, 46, and cases cited; 1 Washb. Real Prop. 3, 4, where the doctrine is fully discussed. Hence, on the one hand, buildings erected on the real estate of another, without his permission, become part of such real estate; and if erected by the husband on his wife's lands, they become hers. Washburn v. Sproat, 16 Mass. 449. But, on the other hand, if I build on another's lands under an agreement that the house shall remain my personal property, the law gives effect to the agreement. 1 Greenl. Cruise, 46, and cases cited; Sudbury v. Jones, 8 Cush. 189; Dame v. Dame, 38 N. H. 429; Bearly v. Cox, 4 Zabr. 287; McCracken v. Hall, 7 Ind. 30. Even the subsequent assent of the owner to such erection is held sufficient for this purpose. Fuller v. Tabor, 39 Me. 519. And see Mott v. Palmer, 1 Comst. 564; 1 Washb. Real Prop. 3, and cases cited. But the title to house and land becoming united in one and the same person, the whole property is real estate. See Burk v. Hollis, 98 Mass. 55. And it may be remarked in general, that the mere annexation of an article of the character of a fixture to the freehold of another does not necessarily make it the property of the latter, or subject it to the rule of fixtures; for, if done by his consent, the owner may remove it at any time. Wood v. Hewett, 8 Q. B. 913. A temporary building may be taxed as part of the real estate. 130 Mass. 428. Engines, cars, and rolling-stock generally of a railroad, continue chattels, though used in connection with the land, according to the better opinion, Williamson v. New Jersey R., 29 N. J. Eq. 311; cf. ib. 610; Randall v. Elwell, 52 N. Y. 521; Hoy v. Plattsburgh R., 54 N. Y. 314; but the railroad track permanently laid is part of the realty, Van Keuren v. Central R., 38 N. J. L. 165. The attached to the word "fixture" itself. The question whether a thing is a fixture or not comes up when some estate or term has ended and the right of taking away is at issue between parties; and, whatever the language of the courts, we find that one article is allowed to be taken away because it is an annexed thing which under the circumstances should be favored, while another may be taken because (there never having been annexation at all) it was always as much a personal chattel as the hat which you lay upon the floor and then pick up again. The modern tendency is to get rid of all precise definitions which would restrain the word "fixtures" to things actually or firmly affixed to the freehold. And in the United States, the favored doctrine of late years is, that whether chattels are to be regarded as fixtures depends less upon the manner of their physical annexation to the freehold, than upon their own adaptation to the purpose for which they may have been used in connection with the realty; 2 and furthermore upon See § 56 supra; rails, spikes, and other materials Minnesota Co. v. St. Paul Co., 2 Wall. 644, 645-649; Williamson v. New Jersey R., and other cases supra. As to piers and abutments, see Wagner v. Cleveland R., 22 Ohio St. 563. Cf. § 122 as to steam-heating fixtures. As to electric plant see 132 Penn. St. 363; Capehart v. Foster, Minn. (1895). 1 Thus, Baron Parke says that fixtures is a very modern word, and is generally understood to comprehend any article which a tenant has the power of removing." Sheen v. Rickie, 5 M. & W. 175. And see Coleridge, J., in Wiltshear v. Cottrell, 1 E. & B. 690. 22 Smith Lead. Cas. 239, 251, Hare & Wall. notes; Buckley v. Buckley, 11 Barb. 43; Davis v. Moss, 30 Penn. St. 346; Trull & Fuller, 28 Me. 545; Harkness v. Sears, 26 Ala. 492; Wadleigh v. Janvrin, 41 N. H. 503. See also Shaw, C. J., in Winslow v. Merchants' Ins. Co., 4 Met. 314; 1 Wms. Ex'rs, 6th Eng. ed. 686, n. . the actual intention, real or presumed, of their annexation.1 For, after all, the intention, whether express or inferable with reference to some custom or the common sense of the situation, is here an important element, as in the emblements we have been considering, if not in heirlooms too. § 115. Slight or Constructive Annexation. And, in regard to the method of annexation, we may observe further, that some things which come within the rule of fixtures are but very slightly annexed to the freehold. Thus the doors, windows, blinds, and shutters, the locks, bolts, and bars of a house can generally be removed at any time without the slightest damage to the freehold; and yet these usually pass with the land, so that the occupier cannot remove them against the owner's consent. Their fit connection as an incident to the enjoyment of the house comes doubtless into great consideration. Certain heavy articles, on the other hand, like mirrors, pictures, bookcases, and wardrobes, though strongly fastened to the wall by screws, are usually mere chattels.2 "The difficulty is somewhat increased," says Chief Justice Shaw, "when the question arises in respect to a mill or manufactory, where the parts are often so arranged and adapted, so ingeniously combined, as to be occasionally connected or disengaged as the objects to be accomplished may require." 3 Instances of slight annexation to the freehold come very closely to what has long been styled constructive annexation, of which an instance given in the old reports is that of a man who has a mill, and the miller takes the stone out of the mill to pick it, in order to make it grind better; here, although the stone is severed from the mill, yet it remains 1 McRea v. Central Nat. Bank, 66 N. Y. 489; Hutchins v. Masterson, 46 Tex. 551; Wheeler v. Bedell, 40 Mich. 693; 84 Mich. 632. 2 Park v. Baker, 7 Allen, 78; McKeage v. Hanover Fire Ins. Co., 81 N. Y. 38. But a colossal statue, resting by its own weight on a permanent pedestal, has been treated as a fixture, perhaps with reference to the pedestal rather than to the statue itself. Snedeker v. Warring, 2 Kern. 170. See also 161 Penn. St. 197, as to a monument erected on a cemetery lot. 3 Winslow v. Merchants' Ins. Co., 4 Met. 314. Supra, note, p. 136. See 1 Wms. Ex'rs, 689; Walmsley v. Milne, 7 C. B. N. s. 138. parcel of the mill, and is treated accordingly.1 This is analogous to the doctrine of constructive severance, of which we have already spoken at some length.2 3 § 115 a. Purposes of Improvement; Pecuniary Considerations, etc. In considering, as we should, the intent with which a chattel was annexed to the realty, pecuniary estimates may aid the criterion. If the annexation was made for the purpose of permanently improving the realty and enhancing its value, the subsequent removal of the thing is not to be favored; and such a purpose may be readily raised against the owner of land, who increases or enlarges the buildings on his premises, or places machinery and appliances in his own mill to carry out the obvious objects of its erection. If, again, the worth of the realty at the date of annexation will be sensibly lessened by removing the thing, as by badly disfiguring the building or injuring the soil, this bears against the right of taking away the annexation, and even against a mutual consent to its removal. But portableness, on the other hand, fitness for a ready and beneficial use elsewhere, and the fact that the thing may be taken away without impairing sensibly the value of the realty, all favor the theory that the parties thus mutually intended, as numerous cases show. § 116. Assent to the Annexation; Act of Severance.- Chattels affixed to the realty without the consent, actual, implied, or constructive of their owner, we may here add, do not by their annexation become part of the realty so as to divest him of his title.5 Things rightfully and intentionally annexed may, however, acquire the nature of removable fixtures, or may become per se part of the realty. Manifest intention of the parties may give them the one or the other character 1 Liford's Case, 11 Co. 50 b. And see Wadleigh v. Janvrin, 41 N. H. 503; Mott v. Palmer, 1 Comst. 564; Patton v. Moore, 16 W. Va. 428. 2 See supra, §§ 4, 100; also next section. 8 Foote v. Gooch, 96 N. C. 265; Atchison R. v. Morgan, 42 Kans. 23, and cases cited. 4 Fifield v. Farmers' Bank, 148 Ill. 163. The rights of one who improved, not being the owner of the land, should be more favorably regarded than in case of the owner. See 42 Kans. 23. 5 Cochran v. Flint, 57 N. H. 514; Globe Mills v. Quinn, 76 N. Y. 23; Shoemaker v. Simpson, 16 Kan. 43. And see D'Eyncourt v. Gregory, L. R. 3 Eq. 382. decisively. But all the parties concerned may expressly agree that things originally personal in their nature shall remain subject to removal where they are so attached to the realty as to be fairly capable of subsequent detachment, and this notwithstanding the detachment be more or less injurious to the thing or to the freehold.2 Either an express agreement of the parties to this effect, or attendant circumstances which make their mutual intention thus evident, may be held binding upon all who come within scope of the agreement.3 A fixture may by rightful severance become a chattel once more; but a purely temporary or accidental severance, not intended to be permanent, or the wrongful severance by another, will not divest the thing of its former legal character.5 Of course, fixtures, under any such rule of intention in the annexation, are distinguishable from such closer things as enter into and form parts of a structure upon the land, such as lumber, stone, shingles, and brick, which are fully incorporated with a building and make an integral part of it. § 117. General Conclusion as to determining the Right to take away. Various considerations, then, are to be applied 1 See 14 N. J. L. 395; Wall v. Hinds, 4 Gray, 256; Strickland v. Parker, 54 Me. 266; Perkins v. Swank, 43 Miss. 349; Ford v. Cobb, 20 N. Y. 344. While there is a doubt, the presumption is that the article remains personal property. Hill v. Wentworth, 28 Vt. 428. 2 Warner v. Kenning, 25 Minn. 173; Smith v. Waggoner, 50 Wis. 155; Tifft v. Horton, 53 N. Y. 377; Eaves v. Estes, 10 Kan. 314; Meigs's Appeal, 62 Penn. St. 28; Kinkead v. United States, 150 U. S. 483. Sword v. Low, 122 Ill. 487; Tyson v. Post, 108 N. Y. 217. See § 124 a. 4 Sampson v. Graham, 96 Penn. St. 405. As, e.g., stoves put away for the summer. Blethen v. Towle, 40 Me. 310. 5 Williamson v. New Jersey R., 29 N. J. Eq. 311; Patton v. Moore, 16 W. Va. 428. And see supra, § 115, Fenc as to constructive severance. As to the rights where an owner consents to the annexation, but not to the change of property, quære. But while in such a case, supposing no change of property takes place as between the owner and the person affixing them, still, as to third persons, and for particular purposes, the usual consequences may follow. See 57 N. H. 544, with citations. The right to replevy as personal chattels what a wrong-doer has affixed to the soil as realty is denied in 55 Ind. 470. |